Check out this decision in Commission on Human Rights & Opportunities ex rel. Jennifer Swindell v. Lighthouse Inn, Ct. Comm’n on Hum. Rts. & Opps., Jan. 29, 2009, an administrative decision I just ran across. Jennifer Swindell alleged that she was fired based on race, and harassed based on race, by the defendant. The defendant failed to appear, so default judgment was entered against it, which means that the plaintiff’s factual claims are accepted, but the Commission referee decides whether the facts violate the law. (In fact, the referee rejected on legal grounds plaintiff’s claims of anti-Semitic harassment, which were based on anti-Semitic statements that she allegedly overheard.) The referee therefore accepted the plaintiff’s claim that she was fired because of her race, and I won’t focus on that further; but what’s interesting is how the referee handled the plaintiff’s objection to the owner’s and coworker’s speech:
On June 23, 2007, a dispute occurred between the complainant and Maureen Clark (Clark), respondent’s owner, after a fellow employee had credited a “black lady” with having made a particularly good wedding cake. The complainant asserted that the lady had a name, Diane, and that “African-American” was a term she preferred to “black.” Clark approached an elderly African-American employee who agreed with Clark that “black” was an acceptable term and the complainant was so informed. Clark then stated that the establishment was free of racism. The complainant states in her affidavit that this is not true and proceeds to recount anti-Semitic remarks made by a caterer and also by respondent’s manager in her presence, despite their awareness that the complainant had a Jewish “boyfriend” at the time. There is no allegation that the anti-Semitic incidents were brought to Clark’s attention relative to the June 23, 2007 incident….
The anti-Semitic slurs overheard by the complainant are neither actionable nor compensable. While the complainant may have had a Jewish boyfriend, she herself was not Jewish, and the law is clear that this type of “hostile work environment” claim must fail if the employees actually targeted are not in the same protected class as the complainant. Illiano v. Mineola Union Free School Dist., 585 F. Sup. 2d 341 (E.D.N.Y., 2008), Smith v. AUSC Intern, Inc., 148 F. Sup. 2d 302 (S.D.N.Y. 2001). Not only was the complainant not a member of the targeted class, but the targeted class consisted of respondent’s patrons and customers as opposed to her fellow employees.
The discussions about the baker of “Diane’s” cake permit me to make an award — albeit in a nominal amount — as a result of the entry of default. The interjection of the term “black lady” in the conversation was gratuitous, tactless and wholly unnecessary. The enlistment of an elderly African-American employee to vouch for the appropriateness of the term “black” was sophistical at best. The cake baker (Diane) could and should have been addressed (inasmuch as her name had been forgotten) simply as “the lady,” especially in light of the complainant’s obvious sensitivity to racial characterizations. Having said that, however, this unfortunate exchange on racial nomenclature arose more from thoughtlessness than from an intent to injure and warrants a modest award to the complainant in the sum of $200.
Two hundred dollars isn’t much, but any imposition of legal liability based on the speech here is entirely unjustified. (For more on my views about the tension between hostile environment harassment law and First Amendment law, see here and here, though most courts would not impose hostile environment liability in a situation such as this, even regardless of the First Amendment defense.)